By Josh Sharp and Don Craven, Illinois Press Association
Some of you may have already been impacted by new laws, effective Jan. 1. One of those laws, Public Act 100-0927, started as a very bad piece of legislation from a news reporting perspective. The bill as originally introduced would have unconstitutionally required that the media industry in Illinois remove or expunge coverage of certain criminal record information, free of charge, within 30 days after a request by the subject of that information.
However, thanks to our lobbying efforts in Springfield, the final bill was not of major significance. The IPA was able to secure an amendment that exempted the news media from any changes to the Consumer Fraud and Deceptive Business Practices Act and removed any unfavorable changes to the Freedom of Information Act.
Nevertheless, even as of this writing, it is clear that early drafts of the legislation (SB 2560) which were not part of the final bill, are causing some confusion among our members. To be clear, Public Act 100-0927 added language to the Freedom of Information Act, section 2.15, dealing exclusively with the release of mugshots by law enforcement officers. Prior to the enactment of Public Act 100-0927, section 2.15 read as follows:
“(a) Arrest reports. The following chronologically maintained arrest and criminal history information maintained by State or local criminal justice agencies shall be furnished as soon as practical, but in no event later than 72 hours after the arrest, notwithstanding the time limits otherwise provided for in Section 3 of this Act: (i) information that identifies the individual, including the name, age, address, and photograph, when and if available; (ii) information detailing any charges relating to the arrest; (iii) the time and location of the arrest; (iv) the name of the investigating or arresting law enforcement agency; (v) if the individual is incarcerated, the amount of any bail or bond; and (vi) if the individual is incarcerated, the time and date that the individual was received into, discharged from, or transferred from the arresting agency's custody.”
That language referenced above was NOT changed, and remains in full force and effect.
The amendment below to Section 2.15 relates only to the posting of mugshots by law enforcement offices on their own social media websites, and only for relatively minor offenses:
“(e) Notwithstanding the requirements of subsection (a), a law enforcement agency may not publish booking photographs, commonly known as “mugshots”, on its social media website in connection with civil offenses, petty offenses, business offenses, Class C misdemeanors, and Class B misdemeanors unless the booking photograph is posted to social media to assist in the search for a missing person or to assist in the search for a fugitive, person of interest, or individual wanted in relation to a crime other than a petty offense, business offense, Class C misdemeanor, or Class B misdemeanor.”
Importantly, you will note there is no prohibition on posting mugshots on the official website of the law enforcement agency, nor is there a prohibition in providing the mugshots to members of the news media. To the contrary, the language previously discussed in Section (a) requires the production of those photos.
Other changes made by Public Act 100-0927 deal with the Consumer Fraud and Deceptive Business Practices Act, and apply only to for-profit publications and websites that post mugshots, and then demand a ransom to take the photos down. The law sets up a procedure to allow “victims” to demand the photo be taken down. Again, these changes to the Consumer Fraud and Deceptive Business Practices Act DO NOT APPLY TO THE NEWS MEDIA.
If you get a demand to take down a story or a mugshot, obviously consult with your own attorney, but do not be fooled by the demand letter, thinking you have to immediately remove the information. If local law enforcement tells you the statute on mugshots has changed, please invite them to read the entire public act. There are no changes in Public Act 100-0927 that regulate the news media in Illinois.
For additional information, please CONTACT:
Josh Sharp, Executive Vice President & COO, Illinois Press Association
217-241-1300 – Office
Don Craven, General Counsel, Illinois Press Association